Osman v The Queen
[2012] NZCA 32
•23 February 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA381/2011 [2012] NZCA 32 |
| BETWEEN MUTAZ MOHAMMED OSMAN |
| AND THE QUEEN |
| Hearing: 13 February 2012 |
| Court: Stevens, Ronald Young and Andrews JJ |
| Counsel: B J Hart and M J Porner for Appellant |
| Judgment: 23 February 2012 at 3.15 pm |
JUDGMENT OF THE COURT
The appeals against conviction and sentence are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Stevens J)
A serious robbery
At around 5.00 am on 5 December 2009 Mr Osman, the appellant, and a co‑defendant, Ahmed Zafiri, confronted the complainant, a trainee priest, and demanded his bag. The complainant resisted. The appellant held the complainant while the co‑defendant struck him about the head with a metal wheel brace. When the complainant fell to the ground, both attackers continued the assault. The appellant repeatedly kicked the complainant while the co‑defendant delivered further blows with the wheel brace. The complainant suffered a fractured skull and other serious injuries. His bag was taken and the two men ran off. Following trial and conviction on a charge of aggravated robbery, the appellant was sentenced by Judge Aitken in the District Court to a term of imprisonment of three years and six months.[1] The appellant challenges both conviction and sentence.
[1] R v Osman DC Auckland CRI-2009-004-26901, 15 June 2011 [sentencing remarks].
Mr Zafiri pleaded guilty to a charge of aggravated robbery under s 235(a) of the Crimes Act 1961. He entered his guilty plea at a very early opportunity and initially received a community-based sentence. Following an appeal by the Solicitor-General to the High Court, the sentence was quashed and replaced with a term of imprisonment of two years and 11 months.[2] In dealing with the appeal, Ronald Young J referred to what he found was “very serious offending”.[3]
[2] New Zealand Police v Zafiri HC Auckland CRI-2010-404-316, 16 November 2010.
[3] At [34].
The appellant initially faced two charges, namely, aggravated robbery pursuant to s 235(b) of the Crimes Act (the “being together with” species of aggravated robbery) and causing the complainant grievous bodily harm with intent to do so under s 188(1) of the Crimes Act. When the case came to trial in the District Court, the Crown invited the Judge to remove from the indictment the second count relating to causing grievous bodily harm. This was on two bases, namely, that such a charge was superfluous as the infliction of grievous bodily harm was central to the commission of the robbery and second Mr Zafiri, as the probable instigator of the violence, had faced no such separate charge. The Judge agreed, essentially for the same reasons. Trial counsel acting for the appellant (who was different from the counsel acting for the appellant on appeal) consented to the application.
The appellant was found guilty by the jury of the single count of aggravated robbery under s 235(b) of the Crimes Act. He appeals his conviction on three main grounds. These raise the following issues for us to consider:
(a)Did the trial Judge’s directions to the jury in relation to the appellant’s liability under s 235(b) bring about a miscarriage of justice in terms of s 385(1)(c) of the Crimes Act?
(b)Was any miscarriage of justice occasioned by the jury hearing evidence that at the time the appellant was apprehended by police, he would not answer any questions “unless it was to his lawyer or to the Judge”?
(c)Did the inclusion of the count in the indictment alleging grievous bodily harm and the Crown’s subsequent application to remove it from the indictment cause the appellant to suffer a miscarriage of justice?
We will finally deal with the appeal against sentence.
First ground - the Judge’s directions on s 235(b)
The Crown case
When the prosecutor opened the Crown case, it was alleged that the appellant acted together with Mr Zafiri as part of a plan to rob the complainant, with both men confronting the complainant pursuant to that plan, thereby engaging s 235(b) of the Crimes Act. However, when closing the Crown case, the prosecutor suggested that Mr Zafiri might have been the ringleader with the appellant acting to assist him in the robbery “in a slightly lesser way”. The prosecutor referred to the possibility of Mr Zafiri acting as the principal offender with the appellant “doing an act or acts to aid Mr Zafiri to commit” robbery.
These remarks by the prosecutor and a reference to the possibility of the Judge discussing “the law of parties” led the Judge to direct the jury on that topic. The Judge also provided the jury with a question trail outlining two possible paths by which the appellant might be convicted of the charge under s 235(b). The first was said to be “as principal”, while the second was described as “alternatively as a party”.
There is no doubt that only two offenders confronted the complainant when he was attacked. The Crown did not, as it might have done, allege against the appellant the commission of aggravated robbery under s 235(a) of the Crimes Act. Given that the appellant only faced a charge under s 235(b), the appellant submitted on appeal that the Judge was wrong to give party liability directions under s 66 of the Crimes Act. This is because s 235(b) creates sui generis liability when two persons commit robbery “being together”. The requirement is for the accused, being always more than one person, to be complicit in a joint enterprise.[4]
Liability under s 235(b)
[4]Such approach has been recognised by this Court since the mid-1980s: see R v Galey [1985] 1 NZLR 230 (CA) and recently affirmed by this Court in R v Feterika [2007] NZCA 526.
The basis of criminal liability under s 235(b) of the Crimes Act (formerly s 235(1)(b)) was explained in Feterika as follows:
[32] … the primary issue for the jury, whenever an aggravated robbery is alleged under s 235(1)(b) is whether each accused, and there must always be more than one, is complicit in the joint enterprise. It is not relevant whether under s 66 one may be a principal and another a party. That distinction has no part in the analysis. Section 235(1)(b) is sufficient unto itself.
[33] Two or more persons must be physically present and share an intent to rob, inherent in which is the intent to steal using their collective force should that be called for. Sharing that intent, each must play some definite part to accomplish the design. One may assault or threaten assault and rob and on a s 66 analysis be a principal. Another may be present when the assault happens or threats made, and the robbery is accomplished, and do little more than afford active support. This person may on a s 66 analysis be a party. Under s 235(1)(b) he or she will still be a principal.
[34] If, by contrast, two or more persons are present and assault or threaten assault and one robs without the other or others anticipating that or willing it, that will fall short of aggravated robbery under s 235(1)(b). The principal offender will be guilty of the included offence, robbery, and perhaps assault. Any secondary offender may under s 66(1) be a party to the robbery and also be guilty of assault, but not more.
On the basis of the above passage, Dr Downs for the respondent accepted that the Judge and prosecutor were technically in error in referring to the possibility of s 66 party liability attaching to a charge under s 235(b) when no more than two offenders confronted the complainant. But Dr Downs submitted that the error was in all the circumstances harmless and did not result in a miscarriage of justice. He developed this submission largely in reliance of four reasons, which we now discuss.
First, Dr Downs submitted that, while the prosecutor at times referred to the law of parties, the Crown case was in essence that the appellant acted in “being together with” Mr Zafiri to commit the robbery. Such action was in a context where both men deployed serious violence against the complainant to achieve that aim. As such, and however so expressed in the Crown closing, this was clearly a case under s 235(b) in which two offenders deployed joint force as part of a joint enterprise to commit the robbery. At no stage did the Crown advance a factual scenario inconsistent with s 235(b) liability in a two-offender case. For example, the Crown did not assert that the appellant was acting only as a lookout man or the driver of the getaway car or was physically remote from the actual commission of the crime.
Second, the evidence at trial supported the Crown contention of the appellant “being together with” Mr Zafiri to commit the robbery. Dr Downs cited the evidence of three independent witnesses who confirmed a factual basis for the guilty verdict:
(a)Ms Waugh watched the events unfold from a balcony nearby. She said she saw that the second offender (the appellant) was only a metre or so from the first offender (Mr Zafiri) and that while the former was hitting the complainant with something the second person was swaying as if he was kicking the complainant. She accepted her view of any actual kicks was obscured by a car.
(b)Mr Clarkson saw what happened from the top floor of an apartment block. He said the complainant was trying to get away from two people who were attacking him by grabbing him by the arm. One of these persons struck the complainant several times with an object.
(c)A third witness, Ms Shakes, was watching from the ground level of an apartment building opposite Ms Waugh’s place. She saw two men assault the complainant. One man had what appeared to be a “stick” which he repeatedly used to hit the complainant. She saw the second man repeatedly kicked the complainant while the complainant was on the ground. Ms Shakes described the assailants as both “laying into” the complainant while he was standing and then continuing to do so when he fell down on the ground. Ms Shakes said that the second man delivered six or more “full force” kicks to the complainant when he was on the ground.
The third reason why the respondent contends that there was no miscarriage of justice relates to the directions of the Judge when summarising the Crown case in relation to party liability. Dr Downs submitted that the outline given by the Judge was in terms that would amount in law to offending contrary to s 235(b). As the Judge put it, the Crown case was that the appellant held the complainant and kicked him and “was there throughout this incident assisting Mr Zafiri in the commission of the robbery”. Such a direction was, in substance, the type of direction called for by this Court in Feterika when setting out the requirements for a direction on s 235(b).
Finally, Dr Downs submitted that, even if the jury had chosen to take the party liability route as set out in the question trail, the particular questions were favourable to the appellant. This is because the appellant did not have to assist in the taking of the bag in order to be liable under s 235(b). Rather, as is made clear in Feterika, criminal liability under s 235(b) involves sharing an intent to rob where:[5]
… each must play some definite part to accomplish the design. One may assault or threaten assault and rob and on a s 66 analysis be a principal. Another may be present when the assault happens or threats made, and the robbery is accomplished, and do little more than afford active support.
Dr Downs therefore submitted that by virtue of the nature of the question trail in relation to party liability principles and the directions given by the judge relating to the Crown case, what was described resulted, in substance, in s 235(b) liability. Accordingly he submitted that the appellant has not suffered a miscarriage of justice as defined by the Supreme Court in Matenga v R.[6]
Appellant’s submissions
[5]At [33].
[6] Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145.
For the appellant, Ms Porner submitted that the wrongful inclusion in the question trail and in the summing up of potential party liability was an error that caused a miscarriage of justice. She referred to the specific issues identified in the question trail and submitted that the Court on appeal must assume that the jury answered question one, dealing with liability as a principal, in the negative and proceeded immediately to question four. Had this occurred, the issues to be determined by the jury were:
4.Are you sure Mr Osman knew that Mr Zafiri intended to rob [the complainant] of his bag?
If no, find Mr Osman not guilty and stop
If yes, go to question 5.
5.Are you sure Mr Osman did an act which assisted Mr Zafiri to commit the robbery?
If no, find Mr Osman not guilty and stop
If yes, go to question 6.
6.Are you sure Mr Osman intended to assist Mr Zafiri in robbing [the complainant]?
If no, find Mr Osman not guilty and stop
If yes, find Mr Osman guilty and stop.
Ms Porner then referred to the evidence at trial, including that of the independent witnesses discussed above, in an attempt to identify a credible factual narrative for conduct by the appellant that demonstrated potential liability as a party only – rather than meeting the requirements for liability under s 235(b). Ms Porner referred to the evidence of a female associate of the appellant and Mr Zafiri who said that the whole incident took place within a very short period. But in the end Ms Porner accepted that there was evidence from independent observers who saw the extent of the appellant’s involvement including both confronting the complainant together with Mr Zafiri and the appellant holding and kicking the complainant while Mr Zafiri attacked him with the metal wheel brace.
Discussion
We are satisfied that the acknowledged error in the question trail and the summing up referring to potential party liability of the appellant did not cause a miscarriage of justice. We consider that it would have been sufficient for the Crown to establish liability of the appellant under s 235(b) if:
(a)the appellant was present with Mr Zafiri at the commission of the robbery in the sense that he confronted the complainant while being together with Mr Zafiri;
(b)both men had an intention to rob, and to assist each other therein, so as to share an intent to steal using their collective force, should that be necessary; and
(c)the appellant lent some form of support to Mr Zafiri during the commission of the robbery for example, by standing right next to the complainant implicitly menacing him while Mr Zafiri attacked him and removed the bag.
The observations of this Court in Feterika support this analysis. A key focus is on the role actually performed:
[37] In the case of lesser players certainly, but perhaps also sometimes in the case of major players, the Judge will need to clarify for the jury what part that player played actually. The jury will need to know that to find that player guilty of aggravated robbery they must be satisfied beyond reasonable doubt that he or she:
(a)Intended to rob – to steal by violence or threats of violence – knowing that intent to be shared by at least one other person immediately present.
(b)Assaulted or threatened assault, or was immediately present and at least actively encouraged it.
(c)Stole from the person assaulted or threatened, or was immediately present and at least actively encouraged it.
The evidence of the independent observers amply supports the proposition that the appellant was involved in such a way as to satisfy each of these requirements. As to the intention to rob, the jury’s verdict of guilty must have meant this element was established on the basis of either question four of the “party liability” route or, alternatively, on question three of the principal liability route: “Are you sure Mr Osman and Mr Zafiri acted together and intended to rob [the complainant] in this way?”
Moreover, the requisite intention is an overwhelming inference available from the evidence of the complainant and others. The remaining elements are satisfied by the evidence summarised at [12] above. We are satisfied that no credible narrative emerges from the evidence to support the involvement of the appellant solely as a party. We reject the submissions advanced by the appellant that such a lesser type of involvement was open on the evidence.
It follows that this ground of appeal must fail. The appellant has not suffered a miscarriage of justice by the errors referred to. Even if we were wrong in this view, we agree with the submission of Dr Downs that the appellant has not suffered a substantial miscarriage of justice in terms of the proviso to s 385(1) of the Crimes Act.[7]
Second ground – the right to silence
[7] Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145.
The appellant and Mr Zafiri fled the scene of the attack in a vehicle driven by another and were noticed by the police. Articles from the complainant’s bag were thrown out of the car as it travelled towards the motorway. A short time later the police stopped the car and both men were arrested. A constable administered the appellant his rights. It seems that during the course of being given his rights the appellant interrupted the constable by stating that he would not answer any questions “unless it was to his lawyer or to the Judge”. This evidence was led without objection from the appellant’s counsel.
The appellant now argues that this evidence is inadmissible. Counsel submitted that the mere fact that the evidence was led at trial was a breach of s 32 of the Evidence Act 2006. That provision states:
Fact-finder not to be invited to infer guilt from defendant’s silence before trial
(1) This section applies to a criminal proceeding in which it appears that the defendant failed―
(a)to answer a question put, or respond to a statement made, to the defendant in the course of investigative questioning before the trial; or
(b) to disclose a defence before trial.
(2) If subsection (1) applies,―
(a)no person may invite the fact-finder to draw an inference that the defendant is guilty from a failure of the kind described in subsection (1); and
(b)if the proceeding is with a jury, the Judge must direct the jury that it may not draw that inference from a failure of that kind.
(3) This section does not apply if the fact that the defendant did not answer a question put, or respond to a statement made, before the trial is a fact required to be proved in the proceeding.
Counsel for the appellant submitted, relying on a decision of this Court in Hitchinson v R,[8] that the evidence was not only inadmissible, but if such evidence is adduced, the trial judge must direct the jury that no inference of guilt can be taken from any failure to answer questions put by officials in the course of the investigation. No such direction was given in this case.
[8] Hitchinson v R [2010] NZCA 388.
The passage relied upon in Hitchinson was as follows:
[40] The drafting of the Act is somewhat obscure. Section 32 in itself does not rule evidence either admissible or inadmissible. Rather, what it does is prohibit the fact-finder drawing an inference that the defendant is guilty in certain circumstances. That prohibition would, however, in the circumstances where it applies, indirectly render the evidence of silence inadmissible, as such evidence has relevance only if it is available for the drawing of an inference of guilt. It would seem from the scheme of the Act that, where s 32 does not apply, the fact of silence and the question or statement to which the silence relates are admissible pursuant to the general admissibility section, s 7.
Dr Downs submitted that Hitchinson was distinguishable in that it was not about the exercise of the right to silence in relation to police questioning. The case concerned a person on equal terms with the defendant accusing the latter of a crime, as well as the inter-relationship between the prior consistent statement rule in s 35 of the Evidence Act and s 32. The passage relied upon was obiter dictum.
Dr Downs further submitted that, if evidence about the exercise of the right to silence was inadmissible, subs (2) would be unnecessary. There would be no such evidence before the jury in relation to which anyone could comment, including the Judge. We do not need to resolve the admissibility point as the issue in dispute may be determined by the application of s 32(2).
For the purposes of this appeal we are prepared to assume that s 32(1)(a) of the Evidence Act was engaged. Although the statement by the appellant about not answering any questions seems to have been volunteered when the appellant interrupted the constable, the prosecution could have been said to have offered evidence of the appellant failing to answer a question put or respond to a statement made to the defendant in the course of investigative questioning before the trial. However, there was no breach of s 32(2)(a) as nobody at the trial invited the jury to infer guilt from the appellant’s statement.
But we need to deal with the failure of the Judge to give a direction to the jury pursuant to s 32(2)(b). While acknowledging the desirability of the judge giving such a direction under s 32(2)(b) when the need to do so has been triggered under s 32(1),[9] whether the failure to do so resulted in a miscarriage of justice is a separate question.
[9] See R v E (CA308/06) [2007] NZCA 404, [2008] 3 NZLR 145 at [88]–[89].
In the current case, the comment made by the appellant, in reply to the question from the police officer, that he would not answer any questions unless it was to his lawyer or to the Judge was essentially part of the narrative. No other basis was advanced for its inadmissibility. No point was taken at the trial that the evidence was not relevant. It was merely referred to as contextual material dealing with what the appellant said when he interrupted the constable during the administration of his rights. In that sense, it merely framed his interaction with the police.
Secondly, as already mentioned, the prosecution did not rely on this evidence to prove guilt or expressly seek to have the jury draw inference from silence. The appellant chose to give evidence during his trial. Cross-examination of the appellant did not focus specifically upon his refusal to answer questions upon apprehension by the police.[10] The final relevant factor is that the Judge, in summing up, gave the traditional direction that the appellant did not need to prove his innocence. We therefore consider that the failure of the trial Judge to give a direction pursuant to s 32(2)(b) did not result in a miscarriage of justice. We agree with counsel for the appellant that this point on appeal was “alone … unlikely to be sufficient to carry the appeal”.
[10]Although the prosecutor did not emphasise the point in cross-examination, the appellant apparently being well aware of his rights referred in his answers to his exercise of the right of silence.
The second ground of appeal cannot succeed.
Third ground – amending the indictment
The circumstances in which the indictment came to be amended in the District Court have already been described at [3] above. Dr Downs accepts that the statutory basis for the Crown’s application in the District Court under s 345D(1) of the Crimes Act was incorrectly relied upon. That section only permits variation “at any time before the commencement of the trial”. However, an application pursuant to s 347 of the Crimes Act would have achieved the same results.[11] As well, Dr Downs emphasised that counsel for the appellant consented to the application and would have done so for good reason. The appellant no longer faced a second count punishable by a maximum term of 14 years imprisonment. He also avoided entry of a further conviction governed by the “three strikes” regime.[12]
[11]The Judge’s sentencing remarks suggest that she considered that Mr Osman had been discharged pursuant to s 347 on the grievous bodily harm count.
[12]See definition of “serious violent offence” s 86A of the Sentencing Act 2002.
With reference to the facts, the infliction of grievous bodily harm upon the complainant through the combined forces of the appellant and Mr Zafiri was integral to the aggravated robbery. This was the means by which the crime was carried out. Dr Downs submitted that, while count one alleged a “being together with” aggravated robbery, s 235(a) could have been employed as well. That provision creates a species of aggravated robbery when the person who robs another inflicts grievous bodily harm either “at the time of, or immediately before or immediately after” the robbery. That, in substance, was the Crown allegation. Dr Downs emphasised that no inadmissible evidence had been adduced through the inclusion of the grievous bodily harm count. The same point was made by the Judge and accepted by trial counsel for the appellant.
Ms Porner submitted that there was prejudice to the appellant by virtue of evidence being before the jury of the serious violence done to the complainant. She contended that such evidence would not have been admissible on the aggravated robbery charge. We disagree. We are satisfied that the appellant suffered no prejudice through the order amending the indictment. His defence went unchanged. It was still open to him argue that he was not “being together” with Mr Zafiri in committing aggravated robbery as he did not intend to rob the complainant and that he in fact sought to restrain Mr Zafiri from inflicting any violence on the complainant.
We reject the third ground of appeal. It follows that the appeal against conviction must be dismissed.
Sentence appeal
The appellant submitted that the starting point of five years for the appellant, as compared with the starting point for Mr Zafiri of six years, was too high. Mr Hart for the appellant noted that Mr Zafiri and the appellant were sentenced under different subsections of s 235 of the Crimes Act, respectively (a) and (b). He acknowledged that both subsections carry the same maximum sentence. He submitted, however, that these are essentially different offences which import different considerations and different levels of seriousness.
The appellant’s main contention on the sentence appeal appears to be that the Judge was wrong to conclude that the appellant played an active role in assaulting the complainant. Thus the Judge’s assessment of the appellant’s culpability as opposed to that of Mr Zafiri miscarried.
We reject this submission. The appellant clearly played an active role in the attack. We have already discussed at [12] the evidence of the independent observers as to the role he played. The Judge referred at sentencing to the “clear and compelling evidence of the witnesses … Clarkson and Shakes”.[13] This evidence led her to conclude that the appellant held the complainant while Mr Zafiri struck him with the metal wheel brace before both men continued to assault the complainant as he lay on the ground – Mr Zafiri with the wheel brace and the appellant with his feet.
[13] Sentencing remarks at [21].
After careful analysis, the Judge considered that the appellant was “slightly less culpable” than Mr Zafiri,[14] with the latter being the instigator and the wielder of the wheel brace. We have no doubt that this view was available to the Judge on the evidence.
[14] At [59].
The appellant also ran a disparity submission, given the difference in the end sentences imposed on Mr Zafiri and the appellant. Dr Downs submitted Mr Zafiri’s sentence was the subject of a Crown appeal and appellate intervention was limited to increasing his sentence to the bottom of the available range. Moreover, Mr Zafiri pleaded guilty while the appellant did not. That and the Crown appeal factor is sufficient to explain the different outcomes.
We are also satisfied that an otherwise proper sentence should not be reduced to accommodate the lenient sentence of a co-offender. In Ataria v R,[15] leave was sought to appeal to the Supreme Court on the basis of disparity and sentence, citing a sentence of six years (imposed after trial) as against a sentence of eight months home detention on a youthful co-defendant who had pleaded guilty. The application for leave was rejected with the Supreme Court noting that: “If, as we think, the sentence imposed on Mr Ataria was appropriate, then the sentencing Judge was entitled not to place much weight on the other sentence.”[16]
[15] Ataria v R [2011] NZSC 66.
[16] At [2]. See also Zhou v R [2009] NZSC 129 at [2].
Finally, Mr Hart mentioned that at sentence the appellant had offered to pay $10,000 in reparation. We were informed that this sum had now been paid. Mr Hart invited us to take the fact of payment into account by way of an additional mitigating factor.
In terms of mitigating factors generally, we note that the appellant received a 20 per cent discount to take account of factors such as his relative youth and lack of previous convictions. He received a ten per cent discount for his offer of reparation. Mr Hart submitted that he ought to have been afforded a larger discount. Mr Hart also mentioned the offer made by the appellant to take part in a restorative justice process. The complainant had taken part in such a process with Mr Zafiri, but declined to meet with the appellant. Mr Hart submitted that the appellant was “genuinely remorseful for the part that he did play in the events of that night”.
We consider that the Judge’s approach to the discounts for mitigating factors was sound and unimpeachable. She correctly gave the appellant no discount for remorse as he denied responsibility for the offending. With respect to reparation, a generous allowance was made for the offer of reparation. The fact that the sum of reparation ordered has now been paid makes no difference in principle. All that does is confirm that the appellant has followed through on his earlier offer of reparation. The order having been made the appellant ought to have paid the reparation. He can claim no additional discount merely by meeting that obligation.
We are satisfied that the appeal against sentence must also be dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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